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Secret court says yes when NSA seeks authority to spy

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I think people want the homeland kept safe to the extent we can. – Sen. Dianne Feinstein, D-Calif. and chair of the Senate Intelligence Committee

SALT LAKE CITY — The revelation that the National Security Agency has been collecting cellphone data on all U.S. Verizon customers and can capture Internet communications directly from leading American companies is fueling new concerns over unfettered federal agencies.

But the action is not new, and lawmakers, the Obama administration and others said the data collection should not be a surprise to the public.

Sen. Mike Lee, R-Utah, was among several members of Congress who said the law should be retooled to be more transparent before it ultimately was reauthorized by President Barack Obama in January.

Several civil liberties groups have long flayed the Foreign Intelligence Surveillance Act because it allows warrantless wiretapping and revolves around a secret court that renders decisions not disclosed to the general public.

Consider this information from a U.S. Attorney General's Office report presented to Congress: Of the 1,789 applications seeking electronic surveillance submitted to the court in 2012 by the federal government, all but one was granted — 1,788. The one not granted was withdrawn by the NSA.

Andrew McCullough, a Salt Lake attorney who specializes in civil liberties law, said he is not surprised at the court's record of "blanket" decisions.

"I was at a seminar and able to talk to a judge who was on the FISA court. He told me he was unaware of orders that were denied," he said. "He told me, 'We don't deny them. That bothers you doesn't it, Andy?' It does."

McCullough, too, said he can't fathom the amount of information the Verizon cellphone records would represent — and wondered aloud if they would join the other "secret" records to be stored at the NSA's Utah Data Center when it opens this fall.

"That is an amazing amount of data. It is beyond comprehension. What are they going to do with it?"

The new scrutiny over the intelligence surveillance act and the court rose out of a report by The Guardian, a British publication, that the Foreign Intelligence Surveillance Court on April 25 granted an order giving the FBI blanket authority to obtain the Verizon Wireless records for three months until July 19.

The order leaked to the media organization details that the numbers of both parties on a call are given to the U.S. government, as well as location data, the length of the call, the time and duration of all calls and "unique identifiers."

Sen. Dianne Feinstein, D-Calif. and chair of the Senate Intelligence Committee, said Thursday that the records were provided under a rolling order renewed every three months — an order that has been place the past seven years.

"This renewal is carried out by the FISA court under the business records section of the Patriot Act. Therefore it is lawful. It has been briefed to Congress."

She said the provision of the act and the orders of the court are a necessary tool to stave off threats to national security.

"I think people want the homeland kept safe to the extent we can,” Feinstein said at a Capitol Hill news conference.

But Lee said he was disturbed by the revelation, which only serves to underscore his concern about government overreach.

"The abuses resulting from this court order illustrate the reasons why I have opposed, and continue to oppose, controversial provisions of the Patriot Act and the FISA Amendments Act that are inconsistent with the Fourth Amendment," he said.

While national security has to be safeguarded, he said protection of the country and its citizens can't be sacrificed by a wholesale trampling on privacy rights.

"I am mindful and respectful of fact that we need to look out for our national security interests," he told KSL NewsRadio's Doug Wright. "I think we also need to be mindful of the privacy interests that the American people justifiably have."

Critics with those privacy concerns have attacked the act over its shotgun approach to combatting terrorism and protecting national security.

What the act authorizes is programs of surveillance that are intended to target foreign agents, but it also allows collection of private communications of U.S. citizens without "individualized" suspicion.

McCullough said that should be a concern to everyone.

"They should certainly tell us why they're doing it. It is offensive, it is scary, it is threatening," he said "Maybe I should not be surprised. This so-called Patriot Act has given the government the right to do all kinds of things and they say, 'Don't worry, we are only using it against the bad guys.' I just don't know how you identify the bad guys."

Calls to the NSA with inquiries about the Verizon controversy and its Utah Data Center in Bluffdale went unreturned.

But a U.S. Army Corps of Engineers' brief about the Utah center obtained by an international public information advocacy organization called PublicIntelligence indicates there's more than enough space there to store those records.

The document said the more than 1 million-square-foot computer farm will have more than 100,000 square feet of raised floor in four data halls. A widely reported estimate is that it will consume more than $40 million worth of power each year.

Officials in Washington have not said what the center is for, but the NSA previously issued a statement saying it will "strengthen and protect the nation's cybersecurity."

NSA's Gen. Keith Alexander last summer said that the accusation the agency may be "storing" data on U.S. citizens is "baloney."

But the surveillance and storage of such data by the agency remains a persistent question mark in the minds of critics and some detractors in Congress.

Last year, when the intelligence surveillance act was up for reauthorization, Congressional dissenters had this to say about a provision that is supposed to limit information the government cannot normally access without a warrant:

"The most troubling aspect of (this act) is its impact on the private communications of U.S. persons. The Office of the Director of National Intelligence has stated that ‘'it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the FISA Amendments Act."

Email: amyjoi@deseretnews.com

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